Petition — Florida v. Willie Allen Garrett

81-53 »

—

Office Supreme @ourt, U.S.

F II. E PD

JUL 9 1930

in the ALEXA!

int

of the

United States

October Term, 1981

THE STATE OF FLORIDA,

Petitioner,

vs.

WILLIE ALLEN GARRETT,

Respondent.

On Writ of Certiorari to the

District Court of Appeal of Florida,

Third District

PETITION FOR CERTIORARI

JIM SMITH JANET RENO

Attorney General of the State Attorney of the Eleventh

State of Florida Judicial Circuit of Florida

ANTHONY C. MUSTO ARTHUR JOEL BERGER

Assistant Attorney General Assistant State Attorney

Department of Legal Affairs 6th Floor

401 Northwest 2nd Avenue 1351 Northwest 12th Street

Suite 820 Miami, Florida 33125

Miami, Florida 33128 Tel. (305) 547-7095

Tel. (305) 377-5441

QUESTION PRESENTED FOR REVIEW

WHETHER THAT PARTICULAR HOLDING

OF JACKSON V. INDIANA, 406 US. 715 (1972),

LIMITING THE LENGTH OF PRETRIAL

DETENTION OF A LEGALLY INCOMPE-

TENT DEFENDANT PURSUANT TO A

PENDING CRIMINAL CHARGE, CAN VOID

A FINAL JUDGMENT OF CONVICTION FOR

FIRST-DEGREE MURDER ENTERED

FOLLOWING A PLEA OF GUILTY, WHERE

THAT DEFENDANT EVENTUALLY COULD

BE LEGALLY COMPETENT ONLY BY

MEANS OF PSYCHOTROPIC MEDICATION,

WAS ADJUDICATED LEGALLY COM-

PETENT TO STAND TRIAL AFTER SEVEN

YEARS FROM THE DATE OF HIS ARREST,

WAS AT ALL TIMES CIVILLY COMMITTA-

BLE AND WAS NOT SHOWN TO BE PREJ-

UDICED IN HIS ABILITY TO DEFEND AS

A RESULT OF THE LENGTH OF THE

DELAY?

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ....... i

TABLE OF CONTENTS ggg. ii

TABLE OF AUTHORITIES Eg... iv

r ccccccccccccssecsccce 1

JURISDICTIONAL STATEMENT ............. 1

CONSTITUTIONAL PROVISIONS INVOLVED. 1

STATEMENT OF THE CASE ................. 2

REASONS RELIED ON FOR ALLOWANCE

r 18

G ccccccccrevenssians 23

APPENDIX

Opinion of the Distriet Court of Appeal

of Florida, Third District ............... App. 1

Order of the District Court of Appeal of

Florida, Third District Denying Rehearing . App. 5

Order of the Supreme Court of Florida

Declining Jurisdiction ................-. App. 6

TABLE OF CONTENTS (Continued)

Page

Motion for Rehearing Filed by the State of

Florida in the District Court of Appeal of

Rennt App. 8

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases | Page

Barker v. Wingo,

. QO 5:00 FA as von e co eV vinws 19

Brown v. Jaquith,

318 So.2d 856 (Miss. 1975))ʒii . 22

Commonwealth v. Kerrigan,

— Pa. Super. Ct., 413 A.2d 729 (1979) ... 22

Commonwealth v. McQuaid,

464 Pa. 499, 347 A.2d 465 (1975 )). 20, 22

Campbell v. State,

265 Ark. 77, 576 S. W. 2d 938 (197999 20

Fare u Michael C.,

Ay ar eer eee 21

Fry v. State,

529 P.2d 521 (Okla. Crim. App. 1974).......... 20

Gerstein v. Pugh,

,,,, ceccvavactewes aes 19, 21

Harris v. State,

262 Ind. 208, 314 N.E. 2d 45(1974)............ 20

iv

TABLE OF AUTHORITIES (Continued)

Cases Page

In re Beverly,

. rrr 21

Jackson v. Indiana,

, en 18, 19, 21, 23

O Connor u Donaldson,

D, ̃²ĩ· -- ea eaeee 21

Ore gon u Hass,

c 21

People u Ealy,

49 Ill. App. 3d 922, 365 N.E. 2d 149(1977)...... 22

People v. Lang,

76 Ill. 2d 311, 391 N.E. 2d 350 (19790 ;.. 22

People v. Lang,

62 Ill. App. 3d 688, 378 N.E. 2d 1106 (1978) .. 20, 22

People v. Williams,

48 Ill. App. 3d 842, 362 N.E. 2d 1306 (1977) 22

State v. Bauer,

Minn. 299 N. W. 2d 493 (1980) ..... 20, 22

State v. Brown,

Ie 20

TABLE OF AUTHORITIES (Continued)

Cases Page

State v. Durham,

545 P.2d 805 (Okla. Crim. App. 1976).......... 20

State v. Johnson,

579 S. W. 2d 771 (Mo. Ct. App. 197999 20

State v. Superior Court of Maricopa County,

113 Ariz. 432, 556 P.2d 6 (19760))))) 22

State ex rel. Desinger v. Treffert,

85 Wis. 257, 270 N. W. 2d 402 (1978) 22

State ex rel. Haskins v. County Court of

Dodge County,

62 Wis. 2d 250, 214 N. W. 2d 575 (1974)......... 22

State ex rel. Porter v. Wolke,

80 Wis. 2d 197, 257 N. W. 2d 881(1977)......... 22

United States u Beidler,

417 F.Supp. 608 (M.D. Fla. 1976)............. 20

United States u Lancaster,

408 F.Supp. 225 (D. D. C. 1976) ............. 20, 22

United States v. MacDonald,

% 19

vi

TABLE OF AUTHORITIES (Continued)

Cases Page

United States v. Mills,

434 F.2d 266 (8th Cir. 1970 20

United States ex rel. Daniels v. Johnston,

328 F.Supp. 100 (S. D. N. V. 1971177777). 20

Weinstein u Bradford,

D on ce orien, ba kane a 21

Constitutions

R 1

vii

OPINION BELOW

The opinion to be reviewed is reported as Garrett

u State, 390 So.2d 95 (Fla. 3d DCA 1980).

JURISDICTIONAL STATEMENT

The opinion of the District Court of Appeal of

Florida, Third District was entered on November 4,

1980. (App. 1). Rehearing was denied by that court on

December 8, 1980 (App. 5). The Supreme Court of Florida

declined jurisdiction on April 10, 1981. (App. 6). Justice

Lewis F. Powell, Jr. entered an order extending the

time for filing this petition on June 2, 1981 and extended

the time for filing to July 9, 1981.

This Court's jurisdiction is invoked pursuant to 28

United States Code Section 1257(3).

CONSTITUTIONAL PROVISION INVOLVED

Amendment XIV, Section 1 of the Constitution of

the United States provides that:

***(NJor shall any State deprive any person of

life, liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE*

On July 7, 1970, Defendant Garrett was indicted

for a first-degree murder committed on May 23, 1970.

On October 7, 1970, Defendant Garrett and two other

persons were charged with a second-degree arson, also

committed on May 23, 1970. (R. 1-1 [A]; 129-129 [A]).

Garrett faced maximum sentences of death and ten

years respectively.

The arson, consisting of firebombing of a bar, occurred

at approximately 12:00 A.M. Shots had been fired. The

homicide consisted of the shooting of a police officer

approximately three hours later and four blocks away.

The Defendant was arrested on the same day that both

crimes were committed. (R. 1, 73; SR. 8).

Attorney Louis Beller, who had represented the

Defendant at an earlier preliminary hearing, was formally

appointed to represent Garrett on July 9, 1970, following

an oral colloquy with the Defendant, himself. When the

court attempted to arraign the Defendant on the homicide

charge, his attorney stated both that the Defendant

mentioned that he had hallueinations and that the

Defendant either attempted suicide or had cut his wrist.

This attorney also stated that he uncovered a previous

commitment to a mental institution in Texas. Attorney

»The record on appeal will be referred to by the symbol R“.

That portion of the record on appeal bound and designated as the

transcript of proceedings will be referred to by the symbol “TR”.

The supplemental record on appeal will be referred to by the

symbol “SR”. Pleadings filed directly in the lower appellate court

subsequent to the filing of the record on appeal will be mentioned

without a record citation, because none exists. The appendix to

this petition will be referred to by the symbol “App”.

Beller pled the Defendant not guilty and not guilty by

reason of insanity. The defense then requested

appointment of psychiatrists to examine the Defendant.

The State requested a speedy trial in the interest of

justice. Defense counsel objected, based on the need to

assess Garrett's competency to stand trial and defense

counsel’s belief that Garrett “may be too insane to

cooperate with counsel.” The trial judge stated that he

was going to give the Defendant a speedy trial, but put

off setting a trial date until after a competency hearing.

(R. 63-75).

Pursuant to a court order, a psychiatrist, Dr. Mutter,

evaluated the Defendant. His written report revealed

the following: Conversation with the Defendant revealed

prior violent behavior, shock treatment, and a four

year hospitalization in Texas from 1964 to 1968 where

he had been given psychiatric treatment and placed on

different tranquilizers. Garrett told this psychiatrist of

hearing voices, of “other incidents of cutting up people,”

and of cutting himself in jail because “Little Mama

made [him] do it.” Garrett also revealed some facts

concerning the homicide. Dr. Mutter diagnosed the

Defendant as having paranoid schizophrenia and concluded

that the Defendant was “currently incapable of aiding

in the preparation of his own defense.” Dr. Mutter

concluded that “[bJjased on available history, it is within

medical probability” that Garrett was insane at the

time of the crime, and stated, “I consider him extremely

dangerous to himself and others.” (R. 142-143).

On September 14, 1970, a competency hearing was

held. (TR. 1). Psychiatrist Jacobson testified that Garrett

was suffering from paranoid schizophrenia, and was

probably so afflicted for the past five to ten years. Dr.

Jacobson felt “with some reservations” that Garrett

was competent to stand trial. This psychiatrist qualified

that “my principal concern in terms of his ability to

stand trial would be in insuring that he could maintain

his attentiveness and ability during trial.” Dr. Jacobson

stated that Garrett’s prognosis was “poor for a significant

long-term remission and that future episodes are likely

to recur,” and testified that Garrett was a danger to

society at this time. Dr. Jacobson recommended that

the Defendant “should be admitted to a facility for

long-term treatment.” (TR. 4-10).

Dr. Jaslow, a psychiatrist, testified that Garrett

was able “to relate to me the circumstances surrounding

the. . .crime” and was “probably” competent to stand

trial. However, under defense questioning, Dr. Jaslow

stated that there was a “possibility” that Garrett might

not be able to assist his attorney. As to future prognosis,

this psychiatrist believed that Garrett's schizophrenic

illness was chronic and that “there would be eligibility

. . for repeated episodes of the disturbance where it

comes out.. . , more openly, other times with remissions

either with or without medication,” and that Garrett's

condition would deteriorate without “extended help.”

Dr. Jaslow did note that it was conceivable that Garrett

could decompensate more during the course of a trial.

This psychiatrist was of the opinion that it was “possible”

that violence could occur in the future and recommended

that present hospitalization and intensive treatment

“would be the best thing” for the Defendant’s benefit.

(TR. 10-18).

Dr. Mutter testified, consistently with his above-

summarized written report, that the Defendant was

4

not competent to stand trial, that the illness could go

into a period of remission but reoccur, and that the

nature of Garrett’s delusions make him “extremely

dangerous.” This psychiatrist elucidated that if the

voice told Garrett to kill the judge, “he would get out

of his chair and try to kill [the judge] or me or anybody

in this room.” Garrett was a person of violent propensities,

who might be a danger to himself and those surrounding

him. Dr. Mutter recommended commitment to an

institution. (TR. 21-25).

The judge adjudicated the Defendant incompetent

to stand trial and committed him to a state hospital in

Chatahoochee, Florida. (TR. 27-29).

In an October, 1971 letter, the hospital indicated

that Garrett was competent to stand trial. (R. 140-141).

The trial judge appointed the same three psychiatrists

to evaluate Garrett. (R. 149). In their November reports,

the psychiatrists expressed different views. While noting

that the Defendant had been receiving large doses of

anti-psychotic medication, Drs. Jaslow and Jacobson

concluded that Garrett was competent to stand trial.

Dr. Jacobson asserted that Garrett's remission was

“marginal.” Dr. Jaslow indicated that the Defendant

“may have been” acutely psychotic at the time of the

crime, but that this doctor lacked objective material to

Prior t the competency ruling, defense counsel indicated a

willingness to waive a jury trial. The court responded that such

“is always a problem from decisions around the country, whether

you can waive [jury] in circumstances like this.” (TR. 26). Contrary

to what the lower appellate court indicated, the record does not

reflect that Garrett waived his right to a jury trial either at this

time or at any time prior to his 1978 plea.

permit a valid opinion. Dr. Mutter stated that Garrett

could not be properly evaluated because he was on

high doses of anti-psychotic medicine, that Garrett was

going into remission, and that, if Garrett was released,

he could become dangerous to himself and the community.

Dr. Mutter expressly recommended that Garrett be

withdrawn from all medication for a minimal period of

thirty days and then be reevaluated to determine his

competency to stand trial. (R. 136-139, 144-145). The

trial judge received a request from one state hospital

that judges not order the hospital to accept patients

without medication, due to limitations on hospital capacity.

The trial judge then wrote to the three psychiatrists

and, in light of the hospital's request, asked to be

advised if they still believed that Garrett should be

returned to the hospital with instructions that he should

be taken off medication and then should be reevaluated.

Approximately ten days later, the judge ordered that

Garrett be returned to the hospital, and that the hospital

withdraw all medication and reevaluate him to determine

his competence to stand trial. (R. 42-44, 148).

A different judge was assigned to try Garrett's

arson charge. The Defendant remained at the jail and

appeared before the second judge in March of 1972.

When his case was called, Garrett rose in the jury box,

holding what turned out to be a fake bomb which he

had ignited. The entire courtroom was evacuated. After

being informed that the first judge had ordered Garrett

to the hospital, the second judge ordered Garrett to

the hospital “as soon as practically possible.” (SR. 2-6).

In September of 1972, the hospital sent a letter to

defense counsel, which stated that Garrett had not

been given medication and that, without medication,

Garrett had remained competent. Defense counsel had

filed a motion to have the Defendant returned to Miami,

Florida to be reevaluated for competency to stand trial.

A November, 1972 letter from the hospital to the court

stated that Garrett had been without medication for

six weeks and was deemed competent to stand trial. In

March of 1973, the trial judge appointed five doctors to

evaluate Garrett, including the three previous

psychiatrists and two new psychologists. (R. 146, 157,

159-160, 172).

In their April, 1973 reports, all three psychiatrists

and one psychologist concluded that Garrett was

incompetent to stand trial, represented a serious danger

to himself and others, and needed hospital treatment.

Both Drs. Jaslow and Jacobson described Garrett as

probably more disturbed now than in the past. Dr.

Jaslow suggested additional treatment at a hospital

with the recommendation that “medications could be

helpful.” Dr. Jacobson described the Defendant's behavior

as “quite unpredictable.” Dr. Mutter recommended that

Garrett be recommitted until he went into remission,

and “suggested that, when he is felt to be in remission,

he be withdrawn from all medication for a minimal

period of sixty days to determine his ability to remain

emotionally stable.” Noting that Garrett had “a great

lability” and had demonstrated that his illness could

easily be exacerbated, Dr. Mutter stated that Garrett

“should not be released under any circumstances.” (R.

173-178, 180-182).

On April 12, 1973, the judge, who was assigned to

the homicide case, held a hearing and recommitted

Garrett to the hospital with instructions that, after it

was determined that Garrett had gone into remission,

Garrett's medication should be withdrawn for sixty

days to determine his ability to remain emotionally

stable. Defense counsel orally moved to have Garrett

adjudicated not guilty by reason of insanity pursuant

to a new Florida rule of criminal procedure, Fla.R.Crim.P.

3.210(a)(5) (1973). That motion was denied. Several days

later, Garrett appeared before the second judg who

was assigned to the arson case. That judge reserved

ruling on the same motion, but stated that he would

rule in accordance with the appellate court decision

which would result from the defense’s appeal of the

first judge's ruling on Garrett’s motion for an adjudication

of insanity. (TR. 39-44; R. 131, 179, 184). That appeal

was subsequently dismissed in October of 1973. Garrett

u State, 283 So.2d 905 (Fla. 3d DCA 1973).

Pursuant to the hospital's request that Garrett be

returned, an order was entered in March of 1974, that

the Defendant be returned to Miami and evaluated by

Drs. Mutter and Jaslow. This order did not contain a

prohibition on giving medication to the Defendant. In

their April, 1974 reports, both psychiatrists found Garrett

competent to stand trial. However, Dr. Mutter ended

his report by stating (1) that Garrett “cannot be properly

evaluated when he is under such high doses of anti-

psychotic drugs,” (2) that it was “most probable” that

Garrett would decompensate and become a danger to

himself and others, if his medication was stopped, (3)

that the ideal form of treatment for Garrett would be

rehospitalization and continued psychiatric treatment

“until he is at the point where he might be able to

remain in remission without the use of anti-psychotic

drugs,” and (4) that Garrett was “still unstable and

should be returned to a confined setting until he [was]

more stabilized,” be given further treatment and be

reexamined “to determine his ability to maintain

stabilization in the community.” (R. 190, 194-198).

The homicide case was reassigned to the judge

who had been assigned to the arson case. (R. 193). At a

June 26, 1974 hearing, it was revealed that Garrett had

“attacked one of the [jail] nurses who went to administer

medication.” Defense counsel asserted that, based on

his conduct in the jail, Garrett was not competent to

stand trial now and would probably never be competent

to stand trial. Defense counsel moved to have the

Defendant declared not guilty by reason of insanity

and committed to a mental hospital. This trial judge

stated that he had “no report that says [Garrett] will

never be competent” and that the last report to the

court was that Garrett as competent. The judge denied

the defense request “to just instanter find him not

guilty by reason of insanity” and ordered Garrett

recommitted to a hospital. The written commitment

order contained no prohibition regarding the

administration of medication to the Defendant. (TR.

46-51; R. 3).

In mid-August of 1974, approximately one and one-

half months after the last court hearing, the hospital

wrote the court and communicated that Garrett was on

medication, that he was competent to stand trial, that

he could only be maintained in remission by medication,

and that he had “the potential for dangerous behavior

in the community.” The hospital also wrote that Garrett's

commitment “ought not to continue indefinitely and

that some other disposition be considered.” (R. 4-5). In

September of 1974, the trial judge denied the hospital’s

request to return Garrett to court “at this time.” (R. 6).

In November of 1974, the hospital presented Garrett's

case to a hearing examiner, who ordered Garrett

involuntarily hospitalized for a four month period. In

May of 1975, Garrett again appeared before a hearing

examiner, who ordered Garrett involuntarily hospitalized

for one year and recommended that he be returned to

court. (R. 10).

A third judge was now assigned both cases. In

August of 1975, the hospital requested that Garrett be

returned to court. A July, 1975 hospital memorandum

reflected that Garrett was on medication and had received

psychotherapy, occupational therapy and recreational

therapy. This memorandum revealed that Garrett engaged

in fighting and aggressive behavior on several occasions,

and that, as a result, Garrett spent his entire stay in

the hospital on a closed ward. (R. 8-10). The trial judge

ordered Garrett returned and appointed Drs. Mutter,

Jaslow and Jacobson to examine him. (TR. 59-63, R.

11-12).

In their September, 1975 reports, all three

psychiatrists opined that Garrett was competent to

stand trial, although two of these doctors observed

that Garrett was receiving very high doses” of

psychotropic medication. During an interview with Dr.

Mutter, the Defendant was able to relate facts concerning

10

the homicide.’ Dr. Mutter also expressed his view that

“[djespite the outcome of this case [Garrett] should not

be released under any circumstances unless it can be

shown that he can function in a normal manner, and not

be dangerous to himself or others with reduced

medication.” (R. 15-21).

A trial court hearing was held on October 2, 1975.

A prosecutor stated that the Defendant was heavily

medicated and requested that the Defendant be taken

off medication and evaluated. That prosecutor stated,

“It’s like chaining a man down so he can’t move his

arms, legs or anything, and [saying], ‘Well, he didn’t

swing at me.’ I mean it is just absurd to evaluate a man

this way.” Defense counsel requested that Garrett be

permitted to stand trial, based on the psychiatric reports.

After argument, the trial judge changed her mind and

granted the prosecutor’s request, stating, I don’t think

that’s the meaning of the law. The law is if he is competent

to stand trial. It doesn’t say if he takes enough medicine

not to be violent he is competent to stand trial.” That

day the judge entered a written order directing that

the jail refrain from giving any medication to the

Defendant, and appointing psychiatrists to reexamine

the Defendant. (TR. 65-68; R. 22).

This report provides: Garrett] stated, ‘We were at a night

club. Me and my friend were there. I tried to tell the police that I

was sick and wanted to go to the hospital. I could recognize my

sickness but I had it before. I was hearing voices. The police came

and stopped my friend and me. The police were beating on him. I

told him to run. He ran. I ran and then came back to the scene. The

police officer was staggering. I got a gun and told him to stop. He

turned around. I thought he was going to shoot me, then I shot

him.

11

In their November, 1975 reports, both psychiatrists

concluded that Garrett had severely regressed and

was no longer competent to stand trial, as a result of

the withdrawal of medication. Dr. Mutter stated that

Garrett should not be released under any circumstances

because he was “extremely dangerous.” That doctor

also stated, “It is quite apparent that his former psychiatric

treatment consisted only of drug therapy and not any

type of psychotherapy where he could have gained

insight into his problem and gained greater ego strength.”

Dr. Mutter recommended that Garrett be recommitted

to a hospital “for long-term treatment, psychotherapy

as well as chemotherapy, so that he may be properly

rehabilitated to the extent that he does not pose a

danger to himself or others.” (R. 201-204).

On December 3, 1975, defense counsel requested a

hearing to have the Defendant adjudicated not guilty

by reason of insanity on the grounds that there was no

substantial probability that Garrett would become

competent in the forseeable future, and that no progress

was being made toward the goal of making Garrett

competent. The trial judge noted that insanity at the

time of the commission of the crime was a question of

fact to be determined by the jury and denied the defense

motion “at this time.” Based on the recent psychiatric

reports, the judge found that Garrett was incompetent

to stand trial “at this time” and recommitted him to a

hospital. (TR. 74-79; R. 23, 205).

Hospital correspondence of June 4, 1976, requested

that Garrett be returned to court, since Garrett was

treated with “a full range of hospital programs including

psychotherapy,” had not been on psychotropic medication

12

for over two months and was legally competent. (R.

24-26). Ten days later, the hospital sent another letter

requesting that Garrett be retained at the hospital

because he had decompensated and was no longer

competent to stand trial. (R. 27). In August of 1976, the

hospital asserted that Garrett was competent to stand

trial, and requested his return to court with the

recommendation that Garrett should be kept on

psychotropic medication, due to his tendency to

decompensate in its absence. (R. 29-31).

The trial judge ordered that the Defendant should

be returned to Miami, directed that he should be held

in the jail for four months without medication, and

appointed three psychiatrists to evaluate him. (TR.

85-88; R. 33, 37, 206).

In October of 1976, the trial court denied a defense

motion (1) to have the judge adjudicate the Defendant

not guilty by reason of insanity and civilly commit him,

and (2) to provide the Defendant with medication

immediately, on the ground that the court order depriving

him of medication amounted to cruel and unusual

punishment. (R. 135, 209-210 [A).

After examining Garrett when he had been without

psychotropic medication for several months, all three

psychiatrists concluded in their February, 1977 reports

that Garrett was not competent to stand trial. Based

on his interview with the Defendant, Dr. Jacobson stated,

“[T]here is some possibility that he does exaggerate

and alter his symptomatology for conscious reasons,”

although he was suffering from a schizophrenic

disturbance. That psychiatrist also rendered the opinion

13

that “there is a possibility and not an improbable or

unlikely one, that the defendant could acquire competency

for trial if he were maintained on anti-psychotic

medication,” while asserting that the converse would

be true if the Defendant was not allowed to take

medication. Dr. Jaslow noted that Garrett did express

certain ideas that showed the ability to think and reason.

Finally, Dr. Mutter also concluded that Garrett was

homicidal, should not be released under any

circumstances,” and had the propensity to repeat his

homicidal behavior while in a psychotic state. That

psychiatrist recommended that Garrett be committed

to a mental facility “until . . . he is able to enter a

state of remission without benefit of medication.” (R.

211-220).

The defense filed a motion claiming (1) that the

Defendant was entitled to discharge for violation of his

federal and Florida rights to a speedy trial, (2) that

Garrett's continued confinement on the basis of his

incompetency violated due process under Jackson u

Indiana, 406 U.S. 715 (1972), and (3) that the judge

should adjudicate the Defendant not guilty by reason

of insanity and civilly commit him pursuant to the

provisions of a Florida rule of criminal procedure. (R.

40-41).

On March 2, 1977, a lengthy hearing was held on

the Defendant's motion. The defense stipulated that

Garrett was presently incompetent and a possible danger

to himself. Drs. Jaslow, Mutter and Jacobson all testified

that there was a substantial probability that Garrett

would be competent in the forseeable future, if the

court permitted him to be maintained on psychotropic

14

medication. The trial judge asked Dr. Mutter whether,

if Garrett were receiving intensive psychotherapy, he

could conceivably regain competency to the point where

he could be maintained on lighter doses of psychotropic

medication and not decompensate if the medication

was stopped for a short period of time. That psychiatrist

answered that there was a “great possibility, even

probability” that this could be done and that it “would

give him a better chance than if he were just treated

on medication alone.“ Dr. Jacobson testified that

psychotropic medication had drawbacks, had side effects

and was occassionally ineffective, but that Garrett

tolerated his medication well and did not seem to suffer

much in the way of secondary effects. Dr. Jaslow testified

that he had not observed that Garrett was suffering

from any side effects, and could not think of a medical

reason for curtailing the medication if Garrett was not

showing any serious side effects. The clinical director

of one of the state hospitals testified that it was “poor”

medical practice to deprive Garrett of his medication

and that his hospital lacked enough staff to give verbal

insight therapy. (TR. 91-184).

Following the taking of testimony, the prosecution

requested that Garrett be recommitted, returned to

competency, and, thereafter, maintained on psychotropic

medication “so we can try him.” The trial court denied

Garrett’s motion on all grounds, found the Defendant

incompetent to stand trial “at this time” and committed

him to the hospital. (TR. 199, 209-210; R. 41 [A], 45-46).

In August of 1977, the hospital informed the court

that Garrett was competent to stand trial with medication.

(R. 47-48). In October, the defense rejected a stipulation

15

that Garrett was competent to stand trial and requested

a hearing on this issue. (R. 55-59).

On November 1, 1977, a competency hearing was

held. The prosecution called five witnesses from the

state mental hospital in support of its position that

Garrett was competent. Defense counsel Beller argued

that Garrett was not competent to stand trial, because

he was in remission only due to psychotropic medication

and because this attorney could not determine whether

the medication would affect Garrett's ability to confer

with counsel. The prosecutor argued that the unanimous

opinion of all of the witnesses was that Garrett was

competent to stand trial, and, further, that there were

no indications by case law, statute or state court rules

of criminal procedure that a defendant could not lawfully

be tried while competent as a result of psychotropic

medication. Following argument, the trial judge ruled

that Garrett was competent to stand trial. (TR. 216-248;

R. 62).

A December trial date was changed to the end of

January, 1978, as a result of the defense's assertion

that the first trial date was much too early. in mid-

January, the trial judge denied a defense motion to

discharge Garrett for a speedy trial violation. In mid-

January, the defense then sought a writ of prohibition

from the appellate court and obtained an order to show

cause. However, the prohibition proceedings were

subsequently dismissed on March 3, 1978 in State ex

rel. Garrett v. Morphonios, 356 So.2d 392 (Fla. 3d DCA

1980). (TR. 252; R. 77-78, 95-107).

On April 24, 1978, Garrett pled guilty to both

crimes. He was sentenced to life imprisonment and a

consecutive ten year sentence. The Defendant's plea

was subsequently changed by counsel to utilize a

procedure allowing Garrett to take an appeal.’ Garrett

expressly and exclusively limited his appeal to the

issue of whether his federal and Florida speedy trial

rights were violated. (R. 108-115; 239, 241; TR. 276-283).

Both the Defendant and the State of Florida filed

briefs in the lower appellate court, which briefs exclusively

addressed Garrett's speedy trial claims. The decision

of Jackson v. Indiana, 406 U.S. 715 (1972), was not

relied on at all in these briefs.‘

On November 4, 1980, the lower appellate court

surprised the State of Florida by rendering a decision

based exclusively on Jackson u Indiana, supra. The

lower appellate court did not address the Defendant's

speedy trial claims at all. (App. 1-4).

In a lengthy motion for rehearing, the State of

Florida contended (1) that the appellate court decided

this case on an issue not before it and should resolve

this case solely on speedy trial grounds, and (2) that

Jackson was misinterpreted by the court in that Jackson

did not require discharge from criminal liability merely

This procedure is authorized under Florida law by means of

a plea of nolo contendere, but permits only an appeal of legal

issues that would be dispositive of the case. Brown u State, 376

So.2d 382 (Fla. 1979); State u Ashby, 245 So.2d 255 (Fla. 1971).

‘Jackson was cited by the State of Florida solely as an historical

fact in a parenthetical note, while commenting on Dr. Mutter's

past recommendations in terms of the Defendant's speedy trial

claims.

17

because a defendant is incompetent and not substantially

likely to regain competence in the forseeable future,

but rather required release from confinement pending

trial. (App. 8-17). The appellate court entered an order

denying this motion for rehearing, without further

discussion. (App. 5).

REASONS FOR GRANTING THE WRIT

In Jackson v. Indiana, 406 U.S. 715 (1972), this

Court reviewed a pre-trial order committing a criminal

defendant to a mental hospital pending trial. That

defendant was not mentally ill in the medical sense,

but was handicapped to the degree that he was then

legally incompetent to be tried consistent with the

Constitution. This Court found due process and equal

protection deficiencies in the Indiana pre-trial commitment

procedure that would, in effect, permit indefinite

confinement of that criminal defendant, without the

rights and protections given to similarly handicapped

non-criminally-charged persons and without a trial to

determine his guilt or innocence on the very criminal

charges which were being used as the exclusive basis

for his confinement. Regarding release from the mental

institution pending trial, this Court held that such

detention for trial must be limited to no “more than the

reasonable period of time necessary to determine whether

there is a substantial probability that [the defendant]

will attain [the] capacity [to stand trial] in the forseeable

future.” Id, 406 U.S. at 738. This Court also held that,

even if the first condition for continued confinement

was realized, continued commitment must be justified

by progress toward the goal of legal competency to

18

stand trial. After ruling on the lawfulness of Jackson's

pre-trial detention, this Court commented on the right

to try the defendant on the pending criminal charges,

but expressly refrained from ruling on that issue. This

Court did suggest, “Dismissal of the charges against an

incompetent accused [is] justified on... the... right to

a speedy trial, or the denial of due process inherent in

holding pending criminal charges indefinitely over the

head of one who will never have a chance to prove his

innocence.” Jd, 406 U.S. at 740. This latter portion of

Jackson was unambigously separated from the pre-trial

detention issues.

Jackson did not hold that any right to release from

pre-trial detention pending trial also constituted a right

not to be tried on the criminal charges. Indeed, it is an

established rule of federal constitutional law that an

“illegal... detention does not void a subsequent

conviction.” Gerstein u Pugh, 420 U.S. 103, 119 (1975).

In the instant case, the lower appellate court reversed

Garrett's judgment of conviction solely “on the basis

that, under the holding of Jackson u Indiana, 406 U.S.

715... (1972), he should never have been brought to

trial.” Noting that Jackson was decided on due process

and equal protection grounds, the particular holding,

on which this decision was based and which was quoted

in the opinion, was that portion of Jackson addressing

the right to pre-trial release from a mental institution.“

*The lower appellate court never analyzed the facts in terms

of the speedy trial analysis mandated by Barker u Wingo, 407 U.S.

514 (1972), and the status of the case at the time of the plea,

United States v. MacDonald, 435 U.S. 850 (1978). From a speedy

trial perspective, the State of Florida's position that Garrett was

(App. 2-3) The lower court concluded (App. 3-4):

On these facts, we find Garrett to have been

held more than a “reasonable period” without

the requisite determination of the likelihood

of his eventual ability to stand trial. Moreover,

since it appears that the trial court was of the

opinion that Garrett was per se incompetent

while under the influence of his medication —a

belief not legally untenable until 1977 (when

Section 918.1504 a), supra, was passed), it is

clear that had the court held the hearing

mandated by Jackson, at any time prior to

1977, it would necessarily have found Garrett

permanently incompetent. Under Jackson, the

trial court should have entertained civil

commitment proceedings by the state, or

released him.

We reverse and order that the court below

discharge Garrett unless the State shall elect

to commence civil proceedings within thirty

days from the issuance of our mandate.

(Footnote 5 Continued)

not entitled to a dismissal of charges is strong. See, e. g., United

States u Mills, 434 F.2d 266 (8th Cir. 1970); United States u

Beidler, 417 F Supp. 608 (M.D. Fla. 1976); United States u Lancaster,

408 F.Supp. 225 (D. D. C. 1976); United States ex rel Daniels u

Johnston, 328 F.Supp. 100 (S.D.N.Y. 1971); Campbell u State, 265

Ark. 77, 576 S.W. 2d 938 (1979); People v. Lang, 62 Ill. App. 3d 688,

378 N. E. 2d 1106 (1978); Harris u State, 262 Ind. 208, 314 N. E. 2d

45 (1974); State u Bauer. Minn. , 299 N. W. 2d 493 (1980); State u

Brown, 502 S. W. 2d 295 (Mo. 1973); State u Johnson, 579 S. W. 2d

771 (Mo. Ct. App. 1979); State u Durham, 545 P.2d 805 (Okla. Crim.

App. 1976); Fry u State, 529 P.2d 521 (Okla. Crim. App. 1974);

Commonwealth v. McQuaid, 464 Pa. 499, 347 A.2d 465 (1975).

20

It is clear from the face of this opinion that this

case was resolved exclusively on a federal constitutional

basis. This analysis and result directly conflicts with

the aforementioned decisions of this Court.’ A State

may not impose greater restrictions, as a matter of

federal constitutional law, when this Court specifically

refrains from imposing them. Fare u Michael C., 442

U.S. 707 (1979); Oregon v. Hass, 420 U.S. 714 (1975).

It is clear that Garrett was not illegally incarcerated prior to

being adjudicated competent to stand trial.

It is indisputable that Garrett was civilly committable during

the entire period of time which elapsed prior to his guilty plea and

that such a commitment would have been constitutional. O'Connor u

Donaldson, 422 U.S. 563 (1975); In re Beverly, 342 So.2d 481 (Fla.

1977).

No psychiatrist suggested that Garrett could not attain legal

competence in the forseeable future. Unlike the factual situation

in Jackson, Garrett was mentally ill, suffering from paranoid

schizophrenia. Treatment takes time. Given the seriousness of a

charge of first-degree murder and the nature of Garrett's illness,

the seven year period that was consumed before Garrett was

adjudicated legally competent cannot be deemed constitutionally

unreasonable. And, of course, the best demonstration of what

could be was what did occur. Garrett was adjudicated competent

to stand trial within seven years.

Although bail was never sought, it cannot now be seriously

contended that Garrett would have been released on bail, even if

it is assumed that Garrett was not mentally ill.

Finally, any issue that Garrett had been entitled to release

pending trial became moot after his guilty plea. See Weinstein v.

Bradford, 423 U.S. 147 (1975); compare Gerstein u Pugh, 420 U.S.

103 (1975). In this regard, the lower appellate court ruled on a

controversy that no longer existed.

21

Moreover, the decision sub judice directly conflicts

with the following decisions of other state courts of

last resort. State u Superior Court of Maricopa County,

113 Ariz. 432, 556 P.2d 6 (1976); People u Lang, 76 Ill. 2d

311, 391 N.E. 2d 350 (1979); People u Lang, 62 Ill. App.

3d 688, 378 N. E. 2d 1106 (1978); People u Ealy, 49 Ill.

App. 3d 922, 365 N.E. 2d 149 (1977); People u Williams,

48 III. App. 3d 842, 362 N. E. 2d 1306 (1977); State u

Bauer, Minn. , 299 N. W. 2d 493 (1980); Brown

u Jaquith, 318 So.2d 856 (Miss. 1975); Commonwealth v.

McQuaid, 464 Pa. 499, 347 A.2d 465 (1975); Commonwealth

v. Kerrigan, Pa. Super. Ct. 413 A.2d 729

(1979); State ex rel. Desinger v. Treffert, 85 Wis. 257,

270 N.W. 2d 402 (1978); State ex rel. Porter v. Wolke, 80

Wis. 2d 197, 257 N.W. 2d 881 (1977); State ex rel. Haskins

v. County Court of Dodge County, 62 Wis. 2d 250, 214

N.W. 2d 575 (1974).’ Those decisions show that the

Jackson right to release from a mental institution pending

trial, itself, does not vitiate the right of the government

to later try a defendant for his crime.

By equating the right to release from a mental

institution pending trial with the right to pre-trial release

on bail, the legal error in the analysis employed by the

lower appellate court becomes glaringly apparent.

Recent history has shown that the mentally ill, or

those claiming mental illness, have committed and will

continue to commit crimes that shock the nation. The

frustration that the general public has with the judicial

response to mental illness in the criminal justice system

The lower appellate court's decision also conflicts with United

States u Lancaster, 408 F.Supp. 225 (D. D. C. 1976).

is great. The question presented for review in this case

is a substantial one in terms of its effect on the

administration of criminal justice. The recurring nature

of this problem warrants a clarification of Jackson u

Indiana, 406 U.S. 715 (1972) by this Court.

CONCLUSION

For the above reasons, a writ of certiorari should

issue to review the judgment and opinion in Garrett u

State, 390 So.2d 95 (Fla. 3d DCA 1980).

Respectfully submitted,

JIM SMITH JANET RENO

Attorney General of the State Attorney of the Eleventh

State of Florida Judicial Circuit of Florida

By: /s/_ By: /s/

ANTHONY C.MUSTO ARTHUR JOEL BERGER

Assistant Attorney Assistant State Attorney

General 6th Floor

1351 Northwest 12th Street

Miami, Florida 33125

Tel. (305) 547-7095

Counsel for Petitioner

Appendix

IN THE DISTRICT COURT

OF APPEAL OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1980

CASE NO. 78-1098

WILLIE ALLEN GARRETT,

Appellant,

vs.

THE STATE OF FLORIDA,

Appellee.

Opinion filed November 4, 1980.

An Appeal from the Circuit Court for Dade County,

Ellen Morphonios Gable, Judge.

Terry L. DeMeo; Louis R. Beller; Bruce J. Winick,

for appellant.

Jim Smith, Attorney General and Steven L. Bolotin,

Assistant Attorney General, for appellee.

Before HUBBART“, C. J., and HENDRY and NESBITT,

JJ.

*Judge Hubbart participated in the decision in this case but

did not hear oral argument.

App. 1

PER CURIAM.

Appellant was arrested on May 23, 1970, and charged

with first-degree murder of a police officer, and arson

in the second degree. Trial by jury was waived. At his

arraignment on July 9 of that year, the issue of his

competency was first raised. Three psychiatrists were

appointed at that juncture to assess Garrett’s ability

to participate meaningfully in his defense. After receiving

the evaluation reports of the three experts, the court

found Garrett incompetent to stand trial. He was placed

into the custody of the state’s Division of Mental Health,

Department of HRS, and admitted into Florida State

Hospital at Chattahoochee for restoration to competency.

There he was treated with psychotropic medication,

and his symptomatology entered a period of remission.

On October 14, 1971, the Clinical Director of that

institution informed the court that appellant had been

turned over to the Dade County Sheriffs Office for

further disposition, i.e. to stand trial.

Thereafter, the court ordered Garrett removed

from all medication, to assess the change, if any, in his

faculties. Garrett soon relapsed into his earlier psychotic

state, and was thereupon returned to Chattahoochee.

This process of remission and relapse occurred

repeatedly over the next six years, until Garrett was

finally positively evaluated for competency while under

medication pursuant to Section 918.15(4)(a), Florida

Statutes (1977). He entered a nolo plea, reserving the

right of appeal to this court.

We reverse the judgment of the court below on

the basis that, under the holding of Jackson v. Indiana,

7 App. 2

406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), he

should never have been brought to trial.

Jackson was a twenty-seven-year-old deaf-mute of

pre-school mentality arrested for two robberies netting

him a total of nine dollars. Obviously unable to assist in

his own defense, he was committed to the Indiana

equivalent of Chattahoochee, until such time as he

should be ready to stand trial. After a period of years,

his incarceration was challenged on due process and

equal protection grounds. After state court avenues of

relief had been exhausted, his case was heard by the

Supreme Court, which held, inter alia, that

a person charged by a State with a criminal

offense who is committed solely on account of

his incapacity to proceed to trial cannot be

held more than the reasonable period of time

necessary to determine whether there is a

substantial probability that he will attain that

capacity in the foreseeable future. If it is

determined that this is not the case, then the

State must either institute the customary civil

committment proceeding that would be required

to commit indefinitely any other citizen, or

release the defendant.

32 L.Ed.2d at 451.

On these facts, we find Garrett to have been held

more than a “reasonable period” without the requisite

determination of the likelihood of his eventual ability

to stand trial. Moreover, since it appears that the trial

court was of the opinion that Garrett was per se

App. 3

incompetent while under the infiuence of his medication

— a belief not legally untenable until 1977 (when Section

918.15(4\a), supra, was passed), it is clear that had the

court held the hearing mandated by Jackson, at any

time prior to 1977, it would necessarily have found

Garrett permanently incompetent. Under Jackson, the

trial court should have entertained civil commitment

proceedings by the state, or released him.

We reverse and order that the court below discharge

Garrett unless the state shall elect to commence civil

proceedings within thirty days from the issuance of

our mandate.

App. 4

IN THE DISTRICT COURT OF APPEAL

OF’ FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1980

MONDAY, DECEMBER 8, 1980

CASE NO. 78-1098

WILLIE ALLEN GARRETT,

Appellant,

Vs,

THE STATE OF FLORIDA,

Appellee.

Counsel for appellee having filed in this cause

motion for rehearing, and same having been considered

by the court which determined the cause, it is ordered

that said motion be and it is hereby denied.

A True Copy

ATTEST:

[Signature illegible]

Clerk District Court of

Appeal, Third District

App. 5

SUPREME COURT OF FLORIDA

FRIDAY, APRIL 10, 1981

CASE NO. 60,065

District Court of Appeal,

3d District — No. 78-1098

STATE OF FLORIDA,

Petitioner,

u

WILLIE ALLEN GARRETT,

Respondent.

This cause having heretofore been submitted to

the Court on jurisdictional briefs and portions of the

record deemed necessary to reflect jurisdiction under

Article V, Section 3(b), Florida Constitution (1980), and

the Court having determined that it should decline to

accept jurisdiction, it is ordered that the Petition for

Review is denied.

No Motion for Rehearing will be entertained by

the Court. See Fla. R. App. P. 9.330(d).

App. 6

BOYD, Acting C. J.. OVERTON, ENGLAND,

ALDERMAN and McDONALD, JJ., concur

A True Copy

TEST:

Sid J. White

Clerk Supreme Court.

by: [Signature illegible]

Deputy Clerk

App. 7

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA, THIRD DISTRICT

CASE NO. 78-1098

WILLIE ALLEN GARRETT,

Appellant,

vs.

THE STATE OF FLORIDA,

Appellee.

MOTION FOR REHEARING

Appellee hereby moves this court for rehearing in

the above cause and in support thereof states the

following:

CONSIDERATION OF THE ISSUE WHICH

FORMED THE BASIS FOR THIS COURT'S

OPINION WAS IMPROPER.

(1) This court found that reversal should result

due to the failure of the trial court to hold a hearing as

to the likelihood of Appellant's eventual ability to stand

trial and the fact that it is apparent from the record

that had such a hearing been held, the trial court would

have necessarily found Appellant permanently

incompetent. Slip opinion at 3.

(2) The question of whether these factors require

reversal, however, was not raised as an issue in this

App. 8

case. It was not briefed by either party or even asserted

by Appellant. Rather, the issue here was phrased strictly

in speedy trial terms, both rule and constitutional.

(Appellant's brief, p. i). Indeed, Appellant could not

have raised the issue in any other way, as this appeal

arose pursuant to a plea of nolo contendere. Under

such circumstances, only the claim or claims specifically

reserved may be considered on appeal.

(3) Appellee therefore submits that the issue upon

which this court decided this case is not a proper matter

to be considered in this proceeding and that rehearing

should be granted and the case dealt with strictly on

the the speedy trial claims.

THE REQUIREMENTS OF JACKSON V.

INDIANA, 406 U.S. 715 (1972) DO NOT

MANDATE THE CONCLUSION REACHED

BY THIS COURT.

(4) Even if the issue determined by this court is

held to be a proper subject to consider, rehearing should

nonetheless be granted as this court's conclusion that

Appellant has to be discharged or that civil committment

proceedings have to be commenced is based upon a

misinterpretation of the dictates of Jackson v. Indiana,

406 U.S. 715 (1972), the case upon which this court

primarily relied.

(5) The opinion in Jackson in no way requires

discharge from criminal liability of a defendant who is

incompetent to stand trial. Indeed, the Court specifically

App. 9

declined to hold in such a manner. 406 U.S. at 739. The

court noted that dismissal of charges against an

incompetent might be justified in a given case on a

speedy trial or due process analysis, but to hold, as this

court has, that Jackson requires discharge merely because

a defendant is incompetent and not substantially likely

to regain competence in the foreseeable future is clearly

a misinterpretation of the opinion.

(6) This fact is made apparent not just by the

language of Jackson, but also by the opinion in United

States u Lancaster, 408 F.Supp. 225 (D.C. Cir. 1976), in

which the government was required pursuant to Jackson

to either release or civilly commit an incompetent

defendant. Following an unsuccessful attempt to commit,

the defendant was released to the custody of his aunt.

Despite numerous continued findings of incompetency

and unlikelihood that the defendant would become

competent, the trial court analyzed the question under

a speedy trial analysis and found that since, under the

facts of that case, no speedy trial violation had occurred,

dismissal was unwarranted. A similar conclusion was

reached in Commonwealth v. Kerrigan, 413 A.2d 729

(Penn. 1979). See also In re Harmon, 425 F.2d 916 (Ist

Cir. 1970) (if incompetent defendant is committed to

custody of Attorney General under federal law, court

should require frequent reports on accused's mental

condition, demonstrating the eourt's intention that the

charges would remain pending); United States ex rel.

von Wolfersdorf v. Johnston, 317 F.Supp. 66 (S.D.N.Y.

1970) (state defendant confined for nearly 20 years as

incompetent in hospital for criminally insane entitled

to civil committment, but question of whether he could

be tried should he regain competence was speedy trial

App. 10

question). Cf. State u Lee, 602 P.2d 944 (Hawaii 1979)

(motion for judgment of acquittal on basis of incompetence

at time of trial should be deferred and case suspended

until defendant can assist counsel; potential prejudice

neutralized by court’s authority under Hawaii law to

dismiss when sufficient time has passed that it would

be unjust to resume proceedings, an analysis very similar

to a constitutional speedy trial analysis.

(7) Also instructive is the United States Supreme

Court's opinion in Drope u Missouri, 420 U.S. 162 (1975).

In that case, the Court found that the state trial court

erred in not holding a hearing at the time of trial as to

the defendant’s competence, but noted specifically that

the State was free to retry the defendant if found to be

competent. 420 U.S. at 183. See also Lokes v. Capps,

625 F.2d 1258, 1268, n.5 (5th Cir. 1980), viewing in issue

in terms of speedy trial analysis.

(8) The reasoning of this line of cases is applicable

here. The framework within which the issue presented

should be considered is strictly a speedy trial one. The

requirement of Jackson that upon a finding of

incompetence, a defendant be committed or released

means just that and no more, released, free to walk the

streets, but certainly not discharged from criminal liability

merely because of his incompetence. It must be

remembered that the holding in Jackson was addressed

to the primary question presented by that case, whether

the defendant was entitled to release from confinement

since he had neither been convicted nor committed. In

no way did it hold that the criminal charges cannot

proceed when, as here, the defendant reaches a state of

competence. Thus, Jackson does not stand for the

App. 11

proposition that discharge is warranted and this court

should reconsider its opinion accordingly.

III

THE FACT THAT THE TRIAL COURT DID

NOT MAKE A DETERMINATION OF THE

LIKELIHOOD OF APPELLANT BECOMING

COMPETENT TO STAND TRIAL DOES NOT

SUPPORT THE RESULT REACHED BY THIS

COURT.

(9) As noted in the discussion under part II of

this motion, a defendant who is incompetent and unlikely

to become so in the foreseeable futute is not entitled to

discharge from criminal liability, but only to release or

committment. Thus, had the trial court held the hearing

contemplated by Jackson, regardless of what action it

took within the dictates of Jackson, the fact would

remain that Appellant, upon regaining competency,

would still have been subject to prosecution, assuming

that dismissal would not have been required under a

speedy trial analysis. Thus, any remedy Appellant might

have as regards the failure to properly hold a hearing

should not relate to the charges against him, as any

error as to this matter would not have affected those

charges, and surely should not compel reversal. See

Florida Statutes §924.33. Rather, whatever remedy

Appellant might have would be by way of a civil suit

for damages. See O Connor u Donaldson, 422 U.S. 563

(1975).

(10) Even if discharge would have been appropriate

upon a finding of incompetency, it cannot be concluded

App. 12

that that would have been the action the trial court

would have taken had it conducted a hearing under

Jackson. This is so for a number of reasons. (A) In the

first place, no emphasis was placed in the psychological

evaluations on the likelihood of Appellant returning to

competence. Had this matter been at issue, the question

would have been dealt with in detail and the trial

court’s decision would have undoubtedly taken this

factor into account. There is no way of knowing what

conclusions would have been reached in this regard. (B)

Further, there can be no doubt that at the time Appellant

was evaluated, the question of whether a defendant

could be considered competent while on psychotropic

medication was one which was open to question. Although

the trial court did, as this court noted, believe that a

defendant could not be competent in such a situation, it

is quite possible that if the court was faced with the

alternative of either trying or releasing the defendant,

it might have chosen to try him, recognizing that the

position that the defendant was competent was clearly

at least arguable, thereby allowing the matter to be

determined by an appellate court. (C) In addition, the

matter might have been determined by an appellate

court contrary to the trial court’s belief in a proceeding

instituted by the state, be it appeal or extraordinary

writ. In fact, in at least two cases in other jurisdictions,

courts have in the body of orders dealing with similar

issues, stayed the effect of the order to allow for a

government appeal. United States v. Pardue, 354 F.Supp.

1377 O. Conn. 1973); United States u Jackson, 306 F.Supp. 4

(N.D. Cal. 1969). (D) It should also be considered that

the mere expressions of initial opinion expressed by

the court would not necessarily have been the final

result reached by the court had it dealt squarely with

App. 13

the issue in the context of a hearing, having at that

time the benefit of argument by counsel to the precise

point and of the court’s own research.

(11) Even if it is held that the trial court, had it

held a hearing, would have discharged Appellant from

criminal liability and that such discharge would not

have been disturbed by an appellate court, the action

taken by this court would still be inappropriate. This is

so because the trial court in reaching such a conclusion

would have been wrong, since, as has become apparent

subsequent to the time at which a hearing would have

been held, Appellant was in fact competent at the time.

As both parties have noted in their briefs, and as this

court implicitly noted in its opinion by pointing out

that the trial court’s belief was not untenable until

1977, a person who is competent only on psychotropic

medication can properly be tried. Thus, Appellant was

in fact competent to have stood trial at the time a

hearing under Jackson would have been held. This

court’s conclusion can therefore only be sustained on a

theory that because the trial court would have acted

erroneously if it had acted at all, the proper remedy is

to remand with directions that the erroneous action

occur. Such an approach is clearly inappropriate. The

law that applies on appeal is that in effect at the time

an appeal is decided, even when there has been a

change of law since the time of the trial. Wheeler v.

State, 344 So.2d 244 (Fla. 1977); Evans v. St. Regis

Paper Co., 287 So.2d 296 (Fla. 1973); Williams u Wainwright,

325 So.2d 485 (Fla. 4th DCA 1975); Cosby v. State, 297

So.2d 617 (Fla. Ist DCA 1974). In reaching its conclusion

here, this court is applying not the law at the time of

the appeal, not even the law at the time of the trial, but

App. 14

the trial judge’s apparent misconception of the law at

that time. Appellee submits that such an approach is

wholly unwarranted. Moreover, since, as has been

previously pointed out, the result that would have

been reached had the trial court held a hearing, would

have, at best for Appellant, been the same as was

actually reached, that is, he would not have been tried

until it became clear‘ that a person on psychotropic

medication could properly be held competent, any error

in not holding a hearing cannot be considered grounds

for reversal as it in no way would have injuriously

affected Appellant’s substantive rights. Florida Statutes

§924.33.

IV

CONSIDERING THIS CASE WITHIN A

SPEEDY TRIAL FRAMEWORK, REVERSAL

SHOULD NOT RESULT.

(12) As noted in part I of this motion, the only

issue reversed and presented to this court was the

question of whether Appellant was denied a speedy

trial. As discussed throughout this motion, the real

question to be determined in considering the propriety

of trying a defendant who has previously been held

incompetent is a speedy trial question. Thus, this court’s

attention should focus on that issue in determining

whether reversal is appropriate in the present case.

App. 15

(13) As to this issue, it should be noted that

Appellant has presented claims that both his constitutional

and rule speedy trial rights were violated. As regards

each of these claims, Appellee relies upon the argument

set forth in its brief. Appellee notes additionally, however,

the existence of a case, decided subsequent to the filing

of briefs and to argument in this cause, which compels

the conclusion that Appellant’s claims must be rejected

as regards the claimed constitutional violation. In Sliger

v. State, 382 So.2d 373 (Fla. 5th DCA 1980), the court

held that a claim of a constitutional speedy trial violation

may not be reversed for review on a plea of nolo

contendere, in that proceeding in such a manner deprives

the court of a chance to assess the prejudice to the

defendant, a key factor in reviewing such claims. Indeed,

a defendant might well, in a given case, be able to

present as able a defense many years after the fact as

he might have at the time the charges are filed, or at

least be able to present a sufficient defense that he

might be acquitted. When no trial is held, however, it is

impossible to assess these factors. The reasoning of

Sliger is equally applicable here and should preclude

review of Appellant’s constitutional claim. This case

should therefore be considered only as a rule speedy

trial case and should be, for the reasons set forth in

Appellee’s brief, affirmed.

App. 16

WHEREFORE, Appellee respectfully requests that

this court grant rehearing in the above cause and affirm

the judgment of the trial court.

Respectfully submitted,

JIM SMITH

Attorney General

A.

ANTHONY C. MUSTO

Assistant Attorney General

App. 17

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy

of the instant Petition for a Writ of Certiorari was

mailed by depositing same for mailing at a United

States post office with first-class postage pre-paid to

counsel for Respondent Garrett, Terry L. DeMeo, DeMeo

and Sherman, P.A., ACLU Foundation of Florida, Inc.,

3081 Salzedo Street, Coral Gables 33134, and Bruce J.

Winick, ACLU Foundation of Florida, Inc., University

of Miami School of Law, P.O. Box 248087, Coral Gables,

Florida 33124, and Louis R. Beller, ACLU Foundation

of Florida, Inc., 420 Lincoln Road, Suite 238, Miami

Beach, Florida 33139, on this the 9th day of July, 1981.

/s/

ARTHUR JOEL BERGER

Assistant State Attorney